### FILED JULY9, 2015 In the Officeofthe ClerkofCourt W AStateCourtofAppeals, Division III



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE BRENT McFARLAND, ) 

### No. 32066-9-111 ) 

### Appellant, ) ) 

### v. ) ) 

### BURLINGTON NORTHERN SANTA FE ) 

### UNPUBLISHED OPINION RAILWAY COMPANY, ) ) 

### Respondent. ) 

### BROWN,

### J.

- Brent McFarland appeals the trial court's denial ofhis CR 50 motion for a newjurytrial after he lost his negligence suit against Burlington Northern Santa Fe Railway Company (BNSF). He contends the trial court erred in denying his newtrial motion because itshould have denied BNSF's limine motions excluding witnesses and an exhibit. We conclude any errorwas harmless and affirm. FACTS Mr. McFarland began working for BNSF's Pasco facility in 1994 as a railcar mechanic, or carman. A carman's responsibility is to install heavy cross keys that hold couplers onto railcars. Most cross keys slide in by hand. Forthose thatdo not slide in easily, asledgehammer is normally used to finish the task. When Mr. McFarland first began working for BNSF, carmen used sledgehammers up to 22 pounds. In the late

# 1 i No. 32066-9-111 McFarland v. BNSF

### Ry. Co. 1990s, however, BNSF limited sledgehammerweight to 12 pounds for safety reasons. Carmen complained the lighter sledgehammers actually madethe task more physically strenuous because more force was needed with a higherfrequency of hits. In December 2009, Mr. McFarland injured his shoulder while using a sledgehammerto install a 55-pound cross key. A 2007 Job SafetyAnalysis (JSA) discussed thetask ofcross key removal and installation at the Pasco repair track. This JSAwas in effect at the time ofMr. McFarland's 2009 injury. The JSA explained the proper use ofa sledgehammer to install the key and identified the potential hazards of "pinch point" and "possible back strain orsprains." Clerk's Papers (CP) at 723. In January 2012, Mr. McFarland sued BNSF underthe Federal Employers LiabilityAct (FELA), 45 U.S.C. 

### § 51, that creates a cause ofaction on behalfofa railroad worker against his or her employer. 45 U.S.C. 

### § 51. Mr. McFarland's FELA complaint alleged BNSF negljgentlyfailed to provide him with a safe work environment, safe equipment, safe methods, adequate help, proper supervision, and failed to warn him that his work duties could cause cumulative injuries. On August 6,2013, Mr. McFarland filed atrial management report, listing Robert Russell, Ed Holm, and Andrew Pillar as witnesses. The men are BNSF employees from otheroffices who would allegedly testify about the use ofa hydraulic pusherfor cross key installation, BNSF moved in limine (number 13), asking the court to excludethese witnesses as not properly disclosed. The court granted the motion, noting "this case was filed by the plaintiff in January 2012. The

... amended case scheduling order



### 2No. 32066-9-111 McFarland v. BNSFRy. Co.
which over all indicated discovery completion forall parties June 3rd 2013[.]" Report of Proceedings (RP) at 50. The court ruled, "Given this record, it seems appropriate to grant defendant's motion in limine number 13." RP at 50. Testimony from thethree
men was excluded. Mr. McFarland sought admission ofexhibit 14, a 2011-2012 JSAon an Omega hydraulic cross key installer. BNSF moved in limine (number 5), asking the court to exclude reference to documents not in effect at the time ofthe incident under ER 401, 402, and 403, including exhibit 14. Mr. McFarland responded thatthe 2011-2012 JSA described the "alternative method"to sledgehammers and was "relevant" and "therefore admissible." CP at 706. The court granted BNSF's motion to exclude exhibit 14 and later sustained a BNSF objection to testimony regarding the 2011-2012 JSA. During trial, Mr. McFarland testified the Pasco facility received a hydraulic installer "sometime around 2010, 2011." RP at242. A Pasco BNSF employeetestified the facility had received a hydraulic installer but itwas not being utilized because it needed "the proper hoses or manifold." RP at 167. A Pasco BNSF supervisor, who previously worked with Mr. Russell in Vancouver, testified thetwo came up with an idea for a hydraulic installerwhen BNSF discontinued its use ofsledgehammers over 12 pounds. A BNSF consultant acknowledged the hydraulic installer was being utilized at
some facilities, but discounted its significance. Finally, during cloSing arguments, Mr. McFarland's attorney argued the hydraulic installerwas atthe Pasco office but sat in a corner unused.

3No. 32066-9-111 McFarland v. BNSF

### Ry. Co.
Thejuryfound no negligence. Mr. McFarland unsuccessfully requested a new trial based on,the court's granting ofmotions in limine 13 and 5. He appealed. ANALYSIS The issue is whetherthe trial court erred by abusing its discretion in excluding the testimony of Mr. Russell, Mr. Holm, and Mr. Pillar under BNSF's limine motion number 13, and excluding exhibit 14 in response to limine motion number 5. ' First, weturn to witness exclusion. Mr. McFarland contends the trial court's failure to consider on the record the factors in Burnet v. SpokaneAmbulance, 131 Wn.2d 484,933 P.2d 1036 (1997), before imposing a discovery sanction amounts to an abuse ofdiscretion and requires reversal. A trial court's rulings on discovery sanctions and motions in limine are reviewed for abuse ofdiscretion. Burnet, 131 Wn.2d at494 (discovery sanctions); State v. Powell, 126Wn.2d 244,258,893 P.2d 615 (1995) (motions in limine). Abuse of discretion occurs where the trial court's action is manifestly unreasonable, orexercised
on untenable grounds, orfor untenable reasons. Olverv. Fowler, 161 Wn.2d 655, 663, 168 P.3d 348 (2007). Under Franklin County LCR 4(h)(1)(A), "Each party shall, no laterthan the date for disclosure designated in the Case Schedule, disclose all persons with relevant factual orexpert knowledge whom the party believes are reasonably likely to be called attriaL" Further, U[a]ny person not disclosed in compliance with this rule may not be called to testify attrial." LCR 4(h)(1)(D). But, our Supreme Court has concluded that



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# I**~**

, 4 ! l No. 32066-9-111 

# I McFarland v. BNSF

### Ry. Co.
before the trial court may exclude a witness as a discovery sanction, the court must 

# 'l specify the reason for the sanction on the record. Blairv. TA-Seattle No. 176, 171 

# 1 Wn.2d 342,344,254 P.3d 797 (2011). Specifically, "'it must be apparentfrom the 

# 1 record that the trial court explicitly considered whether a lesser sanction would probably 

### t have sufficed,' and whether itfound that the disobedient party's refusal to obey a discovery orderwas willful ordeliberate and substantially prejudiced the opponent's ability to prepare fortrial." Burnet, 131 Wn.2d at 494 (quoting Snedigarv. Hodderson, 53 Wn. App. 476, 487, 768 P.2d 1 (1989), aff'din part. rev'din part, 114 Wn.2d 153, 786 P.2d 781 (1990)). The failure to address the Burnetfactors is an abuse of discretion. Blair, 171 Wn.2d at 344. Additionally, in Teterv. Deck, 174Wn.2d 207, 274 P.3d 336 (2012). our Supreme Court reiterated that striking a plaintiff's witness as a discovery sanction was an abuse ofdiscretion where the trial court's ordercontained no finding that the plaintiff's discoveryviolation was willful orthat the court explicitly considered lesser sanctions. Teter, 174 Wn.2d at 218-22. The court explained, "Atrial court may make the Burnetfindings on the record orally or in writing

.... Thus, where an order excluding awitness is entered without oral argument or a colloquy on the record, findings on the Burnetfactors must be made in the order itselfor insome contemporaneous recorded finding." Teter, 174 Wn.2d at 217 (citation omitted). Mr. McFarland filed a trial management report, listing Mr. Russell, Mr. Holm, and Mr. Pillar as witnessesjustdays before trial. The court had previously ordered all


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# I I t No. 32066-9-111 McFarland v. BNSFRy. Co. ! 

# t



# I discoveryto be completed over a month prior. BNSF filed a motion in limine (number 13), asking the courtto exclude these witnesses as not properly disclosed. The court granted the motion, noting "this case was filed by the plaintiff in January2012" and discoverywas to be complete "forall parties June 3rd 2013[.]" RP at 50. The court then briefly ruled, "Given this record, it seems appropriate to grant defendant's motion in limine number 13." RP at 50. Based on Burnett, Blair, and Teter, this basis is not sufficient tojustifythe exclusion because the court did not considerthe Burnetfactors. The lack ofconsideration ofthe Burnetfactors on the record is an abuse ofdiscretion. But BNSF correctly argues the error in excluding the witnesses is harmless. "The erroneous exclusion ofa party's witnesses is reversible error unless the errorwas harmless." In re DependencyofM.P., 185Wn. App. 108, 118,340 P.3d 908 (2014) (citing Jones v. CityofSeattle, 179Wn.2d 322, 356, 314 P.3d 380 (2013)). In Jones,
our Supreme Court applied, for the first time, a harmless error analysis to a Burnet violation. The court held the error in Joneswas harmless because the excluded testimonywas largely irrelevant or cumulative. Jones, 179Wn.2d at 356-57. Ample testimony from multiple witnesses showed the existence ofa hydraulic installer atthe Pasco facility after Mr. McFarland's injury, butthe installerwas not being utilized. A BNSF supervisortestified he and Mr. Russell came up with an idea for a hydraulic installer, and that somefacilities were now using the hydraulic installer developed by Mr. Russell. Finally, Mr. McFarland's counsel was ableto and did argue his theorythat a hydraulic installerwas saferforthe employees. Based on the above,



### 6No. 32066-9-111 McFarland v. BNSF

### Ry. Co.
additional testimonywould largely be cumulative. Under Jones, when the excluded testimony is largely cumulative, like here, then a Burnetviolation is harmless. The court's ruling did not amountto reversible error. 1 Next, we turn to proposed exhibit 14. Second, Mr. McFarland contends the trial court erred in granting BNSF's motion in limine 5 (proposed exhibit 14) and sustaining objections to testimony aboutthe JSA because this documentwas relevant to establish negligence. BNSF objected to Exhibit 14 under ER 401,402, and 403. Therefore, we apply ER 401 and ER 402's relevancy tests and ER 403's probative value testto determinewhetherthe trial court abused its discretion in excluding the 2011-2012 JSAand testimony relating to it. To be admissible, evidence must be relevant. ER 402. Evidence is relevant if it has "any tendencyto make the existence ofanyfact that is ofconsequence to the determination ofthe action more probable or less probable than itwould be withoutthe evidence." ER 401. "Evidence is relevant ifa logical nexus exists between the evidence and the fact to be established." State v. Burkins, 94 Wn. App. 677, 692, 973 P.2d 15 (1999). Nevertheless, even relevant evidence "may be excluded if its probative value is substantially outweighed by the dangerof unfair prejudice." ER 403. U[I]n FELA cases an employer is neither required to furnish the employee with the latest, best or most perfect appliancewith which to work, norto discard standard

1 We note the cumulative nature ofthe testimony from these witnesses, provided the trial court with additional tenable groundsto grant BNSF's motion in limine. See State v. McCarthy, 178 Wn. App. 90, 103,312 P.3d 1027 (2013) ("because the evidencewas cumulative

...the trial court did not abuse its discretion in excluding it." (citation omitted). 

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# I

l No. 32066-9-111 1 McFarland v. BNSFRy. Co. 

# I appliances already in use that are reasonably safe and suitable, even though later 

# 1 

# I improvements have been discovered." Soto 

### v. Southern Pac. Transp. Co., 514 F. 

## 1 , Supp. 1,401'1.0. Tex. 1979), affd, 644 F.2d 1147 (1981). The existence ofa more 

# I suitable orsafertool is irrelevant if it is not shown that the tool used is unsafe. Soto, J 

### i 514 F. Supp. at4; Seebergerv. Burlington N. 

### R. Co., 138Wn.2d 815, 826, 982 P.2d 

### j 1149 (1999) (Madsen, J. dissenting). 

# I Here, the 2007 JSAwas in effectwhen Mr. McFarland was injured; it recommended the use ofa sledgehammerto install a cross key. Mr. McFarland claims 

# 1 

# I j the hydraulic installerwould have been safer oreasier. But, under Soto, the existence ofa newtool is irrelevant in a FELA action ifthe existing tool used is not shown to be 

# I unsafe. Mr. McFarland cannot showthe 2011-2012 JSAwas relevant to negligence, because he did not establish the 12-pound sledgehammers were unsafe. Mr. McFarland failed to produce evidence of injuriesfrom the 12-pound sledgehammers (otherthan his own) at BNSF orother railroads; no expert testified repetitive sledgehammerswinging presented ergonomic risks BNSF should have investigated or that BNSF failed to follow any safety management principles; and Mr. McFarland's medical expertdid not testify that sledgehammers were unsafe. Significantly, "hindsight is notthe testforforeseeability." FirstInterstate Bankof Arizona, N.A v. Murphy, Weir & Butler, 210 F.3d 983, 989 (9th Cir.) (2000). And, '''reasonableforeseeability of harm is an essential ingredient of Federal Employers' LiabilityAct negligence.'" Seeberger,

8No. 32066-9-111 McFarlandv. BNSFRy. Co.
138Wn.2d at 823 (quoting Gallick v. Baltimore & Ohio Ry. Co., 372 U.S. 108, 117,83 S. Ct. 659, 9 L. Ed. 2d 618 (1963».**Becaus~** the 2011-2012 JSAwas produced after Mr. McFarland's injury and therewas no showing the sledgehammer Mr. McFarland used was unsafe, there is no logical nexus between the evidence and thefact to be established; and there is no probative value. Thus, under ER 401, ER 402, and ER 403, the evidencewas irrelevant and inadmissible. This provided the trial courtwith tenable grounds to grant BNSF's motion in limine 5. Given all, both sides presented evidence aboutthe hydraulic installer, with BNSF minimizing its usefulness and Mr. McFarland bolstering its usefulness. Both parties
were allowed to arguetheirtheory ofthe case. Witness credibility and the weightto be given evidence is leftto the province ofthejury. Burnside v. Simpson PaperCo., 123 Wn.2d 93, 107,864 P.2d 937 (1994). Mr. McFarland fails to show evidentiary error that warrants the overturning ofajuryverdict. Lastly, Mr. McFarland argues thetrial court erred by abusing its discretion in denying his requestfor a newtrial. Mr. McFarland bases his assertion on the previously discussed assignments oferror. We review a trial court's denial ofa motion for a new trial for abuse ofdiscretion. Hickok-Knight v. Wal-Mart Stores, Inc., 170Wn. App. 279, 324,284 P.3d 749 (2012), review denied, 176Wn.2d 1014 (2013). Based on the discussion above, the court's evidentiary rulings did notamountto reversible error.

9No. 32066-9-111 McFarland v. BNSF

### Ry. Co. Accordingly, the court had tenable grounds to deny Mr. McFarland's motion for a new trial and did not abuse its discretion. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. Brown, A.C.J. WE CONCUR:

Lawrence-Berrey, J.



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